THE 


Presidential Count: 


AN ADDRESS 


cf 3* 4 


TO THE 


REPRESENTATIVES OF THE PEOPLE OF WISCONSIN 
IN CONVENTION ASSEMBLED, AT THE 
CITY OF MILWAUKEE, ON THE 
i 8th DAY OF JANUARY, 1877. 


BY O. W. WIGHT. 


MILWAUKEE: 

THE MILWAUKEE NEWS COMPANY, BOOK AND JOB PRINTERS. 




On motion of Hon. E. E. Chapin, the Address of 
Dr. 0. W. Wight was adopted as part of the pro¬ 
ceedings of the Convention. 


THE 


Presidential Count: 


AN ADDRESS 


TO THE 


REPRESENTATIVES OF THE PEOPLE OF WISCONSIN 
IN CONVENTION ASSEMBLED, AT THE 
CITY OF MILWAUKEE, ON THE 
i 8th DAY OF JANUARY, 1877. 




BY O. W. WIGHT. 


MILWAUKEE: 

THE MILWAUKEE NEWS COMPANY, BOOK AND JOB PRINTERS. 

l877- 





ADDRESS 

TO THE 

Representatives of the People of Wisconsin 

IN CONVENTION ASSEMBLED AT THE CITY OF 
MILWAUKEE, ON THE 18th DAY 
OF JANUARY, 1877. 


“ It is a misfortune inseparable from human af¬ 
fairs,” says one of the writers of the Federalist , 
(Dawson’s edition, p. 239,) “ that public measures 
are rarely investigated with that spirit of moderation 
which is essential to a just estimate of their real 
tendency to advance or obstruct the public good; 
and that this spirit is more apt to be diminished than 
promoted, by those occasions which require an un¬ 
usual exercise of it.” The present crisis, one of the 
greatest that has ever arisen in the country, demands 
special moderation and calm recurrence to the fun¬ 
damental law of the land. Avoiding, then, any ap¬ 
peal to partisan feeling, let us examine the Constitu¬ 
tion and the laws, cite the usages and seek the teach¬ 
ings of patriotic men who have been the wise repre¬ 
sentatives of the people in the progress of our 
political history. 



4 


Provisions of the Constitution, now in force, for 
the election of President and Vice-President, read as 
follows: 

Each State shall appoint, in such manner as the Legislature 
thereof may direct, a number of electors, equal to the whole number 
of Senators and Representatives to which the State may be entitled 
in the Congress ; but no Senator or Representative, or person hold¬ 
ing an office of trust or profit under the United States, shall be 
appointed an elector. (Art. 2, sec. 1, cl. 2.) 

The electors shall meet in their respective States, and vote by 
ballot for President and Vice President, one of whom, at least, shall 
not be an inhabitant of the same State with themselves. They shall 
name in their ballots the person voted for as President, and, in dis¬ 
tinct ballots, the person voted for as Vice President; and they shall 
make distinct lists of all persons voted for as President, and of all 
persons voted for as Vice President, and of the number of votes 
for each ; which lists they shall sign and certify, and transmit sealed 
to the seat of Government of the United States, directed to the 
President of the Senate. The President of the Senate shall, in 
presence of the Senate and House of Representatives, open all the 
certificates, and the votes shall then be counted : the person having 
the greatest number of votes for President shall be the President, 
if such number be a majority of the whole number of electors 
appointed ; and if no person have such majority, then, from the 
persons having the highest numbers, not exceeding three, on the list 
of those voted lor as President, the House of Representatives shall 
choose, immediately, by ballot, the President. But, in choosing the 
President, the votes shall be taken by States, the representation 
from each State having one vote : a quorum for this purpose shall 
consist of a member or members from two-thirds of the States, and 
a majority of all the States shall be necessary to a choice. And if 
the House of Representatives shall not choose a President when¬ 
ever the right of choice shall devolve upon them, before the fourth 
day of March next following, then the Vice President shall act as 
President, as in case of the death, or other constitutional disability 
of the President. (12th Amend.) 


5 


The person having the greatest number of votes as Vice Presi¬ 
dent shall be the Vice President, if such number be a majority of 
the whole number of electors appointed ; and if no person have a 
majority, then from the two highest numbers on the list the Senate 
shall choose the Vice President : a quorum for the purpose shall 
consist of two-thirds of the whole number of Senators, and a 
majority of the whole number shall be necessary to a choice. (12th 
Amend.) 

But no person constitutionally ineligible to the office of President, 
shall be eligible to that of Vice President of the United States. 
(t 2th Amend.) 

Congress may determine the time of choosing the electors, and 
the day on which they shall give their votes ; which day shall be the 
same throughout the United States. (Art. 2, sec. 1, cl. 4.) 

In case of the removal of the President from office, or of his 
death, resignation, or inability to discharge the powers and duties of 
the said office, the same shall devolve on the Vice President, and 
the Congress may by law provide for the case of removal, death, 
resignation, or inability, both of the President and Viee President, 
declaring what officer shall then act as President, and such officer 
shall act accordingly, until the disability be removed, or a President 
shall be elected. (Art. 2, sec. 1, cl. 5.) 

The laws of Congress pertaining to this important 
subject, as they now exist, embrace the sections of 
the Revised Statutes of the United States from 131 
to 151, inclusive, and read as follows: 

Section 13i. Except in case of a presidential election prior to 
the ordinary period, as specified in sections one hundred and forty- 
seven to one hundred and forty-nine, inclusive, when the offices of 
President and Vice-President both become vacant, the electors of 
President and Vice-President shall be appointed, in each State, on 
the Tuesday next after the first Monday in November, in every 
fourth year succeeding every election of a President and Vice- 
President. 

Sec. 132. The number of electors shall be equal to the number 
of Senators and Representatives to which the several States are by 


6 


law entitled at the time when the President and Vice-President to 
be chosen come into office; except that where no apportionment of 
Representatives has been made after any enumeration, at the time 
of choosing electors, the number of electors shall be according to 
the then existing apportionment of Senators and Representatives. 

Sec. 133. Each State may, by law, provide for the filling of any 
vacancies which may occur in its college of electors when such col¬ 
lege meets to give its electoral vote. 

Sec. 134. Whenever any State has held an election for the pur¬ 
pose of choosing electors, and has failed to make a choice on the 
day prescribed by law, the electors may be appointed on a subse¬ 
quent day in such a manner as the legislature of such State may 
direct. 

Sec. 135. The electors for each State shall meet and give their 
votes upon the first Wednesday in December in the year in which 
they are appointed, at such place, in each State, as the legislature of 
such State shall direct. 

Sec. 136. It shall be the duty of the Executive of each State to 
cause three lists of the names of the electors of such State to be 
made and certified, and to be delivered to the electors on or before 
the day on which they are required, by the preceding section, to 
meet. 

Sec. 137. The electors shall vote for President and Vice-Presi¬ 
dent, respectively, in the manner directed by the Constitution. 

Sec. 138. The electors shall make and sign three certificates of 
all the votes given by them, each of which certificates shall contain 
two distinct lists, one of the votes for President, and the other of 
the votes for Vice-President, and shall annex to each of the certifi¬ 
cates one of the lists of the electors which shall have been/urnished 
to them by direction of the Executive of the State. 

Sec. 139. The electors shall seal up the certificates so made by 
them, and certify upon each that the lists of all the votes of such 
State given for President, and of all the votes given for Vice-Presi¬ 
dent, are contained therein. 

Sec. 140. The electors shall dispose of the certificates thus 
made by them in the following manner: 

1. They shall, by writing under their hands, or under the hands 


7 


of a majority of them, appoint a person to take charge of and de¬ 
liver to the President of the Senate, at the seat of government, be¬ 
fore the first Wednesday in January then next ensuing, one of the 
certificates. 

2. They shall forthwith forward by the post-office to the 
President of the Senate, at the seat of Government, one other of 
the certificates. 

3 They shall forthwith cause the other of the certificates 
to be delivered to the judge of that district in which the electors 
shall assemble. 

Sec. i 41. Whenever a certificate of votes from any State has 
not been received at the seat of Government on the first Wednes¬ 
day indicated by the preceding section, the Secretary of State shall 
send a special messenger to the district judge in whose custody one 
certificate of the votes from that State has been lodged, and such 
judge shall forthwith transmit that list to the seat of Government. 

Sec. 142. Congress shall be in session on the second Wednes¬ 
day in February succeeding every meeting of the electors, and the 
certificates, or so many of them as have been received, shall then 
be opened, the votes counted, and the persons to fill the offices of 
President and Vice-President ascertained and declared, agreeable to 
the Constitution. 

Sec. 143. In case there shall be no President of the Senate at 
the seat of Government on the arrival of the persons intrusted with 
the certificates of the votes of the electors, then such persons shall 
deliver such certificates into the office of the Secretary of State, to 
be safely kept, and delivered over as soon as may be, to the Pres¬ 
ident of the Senate. 

Sec. 144. Each of the persons appointed by the electors to de- 
livei the certificates of votes to the President of the Senate, shall 
be allowed, on the delivery of the list intrusted to him, twenty-five 
cents for every mile of the estimated distance, by the most usual 
road from the place of meeting of the electors to the seat of Gov¬ 
ernment of the United States. 

Sec. 145. Every person who, having been appointed, pursuant 
to subdivision one, of section one hundred and forty, or to section 
one hundred and forty-one, to deliver the certificates of the votes of 


8 


the electors to the President of the Senate, and having accepted 
such appointment, shall neglect to perform the services required 
from him, shall forfeit the sum of one thousand dollars. 

Sec. 146. In case of removal, death, resignation, or inability of 
both the President and Vice-President of the United States, the 
President of the Senate, or, if there is none, then the Speaker of 
the House of Representatives, for the time being, shall act as Pres¬ 
ident until the disability is removed or a President elected. 

Sec. 147. Whenever the offices of President and Vice-President 
both become vacant, the Secretary of State shall forthwith cause a 
notification thereof to be made to the executive of every State, and 
shall also cause the same to be published in at least one of the 
newspapers printed in each Sta.te. 

Sec. 148. The notification shall specify that electors of a Presi¬ 
dent and Vice-President of the United States shall be appointed or 
chosen in the several States, as follows: 

Lst. If there shall be the space of two months yet to ensue be¬ 
tween the date of such notification and the first Wednesday in De¬ 
cember then next ensuing, such notification shall specify that the 
electors shall be appointed or chosen within thirty-four days next 
preceding such first Wednesday in December. 

2d. If there shall not be the space of two months between the 
date of such notification and such first Wednesday in December, 
and if the term for which the President and Vice-President last in 
office were elected will not expire on the third day of March next 
ensuing, the notification shall specify that the electors shall be ap¬ 
pointed or chosen ^within thirty-four days preceding the first Wed¬ 
nesday in December in the year next ensuing. But if there shall 
not be the space of two months between the date of such notifica¬ 
tion and the first Wednesday in December then next ensuing, and if 
the term for which the President and Vice-President last in office 
were elected will expire on the third day of March next ensuing, 
the notification shall not specify that electors are to be appointed or 
chosen. 

Sec. 149. Electors appointed or chosen upon the notification 
prescribed by the preceding section, shall meet and give their votes 
upon the first Wednesday of December specified in the notification. 


9 


Sec. 150. The provisions of this Title, relating to the quadren¬ 
nial election of President and Vice-President, shall apply with 
respect to any election to fill vacancies in the offices of President 
and Vice-President, held upon a notification given when both offices 
become vacant. 

Sec. 151. The only evidence of a refusal to accept, or of a res¬ 
ignation of the office of President or Vice-President, shall be an in¬ 
strument in writing, declaring the same, and subscribed by the per¬ 
son refusing to accept or resigning, as the case may be, and deliv¬ 
ered into the office of the Secretary of State. 

. These legal provisions, equally with the constitu¬ 
tional provisions, regulating the election of President 
and Vice-President of the United States, are the 
supreme law of the land; for, the last clause of the 
eighth section of the first article of the Constitution 
itself authorizes the National Legislature “to make 
all laws which shall be necessary and proper for 
carrying into execution the powers by that Constitu¬ 
tion vested in the Government of the United States, 
or in any department or officer thereof,” and the 
second clause of the sixth article declares, “that the 
Constitution and the laws of the United States made 
in pursuance thereof, and the treaties made by their 
authority, shall be the supreme law of the land; any¬ 
thing in the Constitution or laws of any State to 
the contrary notwithstanding.” 

In compliance with the requirements of “ the 
supreme law of the land,” each State in this Union 
held an election in the Autumn of 1876, taking the 
preliminary step towards the choice of a President 
and Vice-President of. the United States. Electors 
were voted for hy the people, 

2 


10 


Now, it is a matter of notoriety and common 
belief that in the last election several men were 
chosen as electors who were ineligible to the office. 
It is a positive mandate of the Constitution that 
“no Senator or Representative, or person holding an 
office of trust or profit under the United States, shall 
be appointed an elector.” 

It is also a matter of notoriety and common be¬ 
lief, that the resuit of the recent election is doubtful 
in certain States, notably in Florida and Louisiana. 

The second step in the process of choosing a 
President and Yice-President of the United States 
was taken on the first Wednesday of December last, 
when the electors, or men assuming to be electors, 
assembled in each State and cast their ballots for the 
two highest offices in the nation. 

The next step remains to be taken at the National 
Capital on the second Wednesday of February of 
this year. 

As a single vote may change the choice between 
the candidates of the two great parties, into which 
the people are politically divided, an intense interest 
attaches to the action of Congress on that momen¬ 
tous occasion. 

I. The first question that naturally arises is 
whether “ the votes shall be counted ” by the Presi¬ 
dent of the Senate, or by the Congress of the United 
States. Is the presiding officer of the Senate, or 
the whole National Legislature, the final canvassing 
board in the complex process of electing a President 
and Vice President? 


11 


1. The language of the Constitution is not ex¬ 
plicit on this point. It makes the presiding officer 
of the Senate the recipient and the custodian of one 
set of the sealed returns of the electoral votes. The 
Constitution provides that “ the President of the 
Senate shall,” on a certain day, “ in the presence of 
the Senate and House of Representatives, open all 
the certificates.” It does not declare that he shall 
count the votes. It does declare that “ the votes 
shall then be counted.” By whom shall the votes 
then he counted ? 

It may be observed, as bearing on this question, 
that the President of the Senate is required to open • 
all the certificates “ in presence of the Senate and 
House of Representatives.” The Constitution does 
not say in presence of the Senators and Representa¬ 
tives. The language of the Constitution clearly, 
definitely and unmistakably implies that the two 
bodies of Congress must be present in their separate 
organic capacity. If either House should refuse to 
be present, the certificates could not be legally 
opened. It may be said that such a refusal would 
prevent a presidential election. No doubt it would. 
In like manner, as one of the writers of “ The Fed¬ 
eralist ” remarks, (Dawson’s Ed, p. 321.), “ Without 
the intervention of the State Legislatures, the Presi¬ 
dent of the United States cannot be elected at all.” 
The complex machinery of our Government can be 
kept in motion only by the co-operation of various 
official bodies. 

Now, as the Senate and House of Representatives 


12 


must be present in their separate organic capacity 
at the opening of the certificates, it would seem to 
be a fair inference that the constitutional phrase, 
“ and the votes shall then be counted,” means that 
they shall be counted by the two branches of Con¬ 
gress, acting, not as a joint convention, not as an 
assemblage of individual Senators and Representa¬ 
tives, but in their capacity as the Supreme Legisla¬ 
ture of the land. It is true that the Constitution 
does not say that the votes shall be counted by the 
Senate and House of Representatives. Neither does 
it say that the votes shall be counted by the Presi¬ 
dent of the Senate. Which is the more probable in¬ 
ference, that the wise and prudent framers of the 
Constitution, who guarded so carefully against the 
danger of concentrating power in the hands of any 
single official, should have designed that the votes 
should be counted by the National Legislature, the 
representatives of the States and of the people, or, 
in a comparatively irresponsible way, by the presid¬ 
ing officer of the Senate alone? It seems to me 
that the question is pregnant with its own answer. 

Another consideration, from the standpoint 
of constitutional exegesis, seems worthy of at¬ 
tention. The mandate of the fundamental law 
is not to the Senate and House of Repre¬ 
sentatives to be present, when the President of the 
Senate opens the certificates, as if the intention were 
to surround with the highest possible dignity the su¬ 
preme minister of the sovereign popular will, while 
determining the result of the electoral vote; but the 


13 


mandate is rather to the President of the Senate to 
open the certificates in the presence of the Senate 
and the House of Representatives, together consti¬ 
tuting the Congress of the United States, the most 
exalted as well as the most immediate representative 
of the national existence and power. It cannot be 
that the authors of the constitution intended to 
make the supreme legislature of the land a power¬ 
less spectator, whilst a mere ministerial officer of the 
Senate should perform alone the final act in the quad¬ 
rennial drama of choosing a chief magistrate of the 
Republic. 

Complaint may be made that the language of the 
Constitution on this point is not sufficiently definite. 
Again, to quote the Federalist (p. 244), “When the 
Almighty himself condescends to address mankind 
in their own language, his meaning, luminous as it 
must be, is rendered dim and doubtful by the cloudy 
medium through which it is communicated.” We 
may well believe that the framers of the constitution 
in their exalted patriotism never imagined that par¬ 
tisan eagerness for success could so blind men as to 
make them suppose that the words, “and the votes 
shall then be counted,” might be addressed to the 
President of the Senate and not to the Congress of the 
United States in whose presence that officer is re¬ 
quired to perform the ministerial function of merely 
opening the certificates. 

2. In the second place, the interpretation that 
has been put upon this phraseology of the Constitu¬ 
tion by the usages of Congress is very important. 


14 


The earlier Congresses contained many members who 
helped frame the Constitution. It must be supposed 
that they understood the instrument that they took 
part in making. An interpretation of constitutional 
language by them is doubly authoritative. 

Section 142 of the Revised Statutes, from the Act 
of March 1792, which is still in force, reads as fol- 
laws: “Congress shall be in session on the second 
Wednesday in February, succeeding every meeting 
of the electors, and the certificates, or so many of 
them as have been received, shall then be opened, the 
votes counted, and persons to fill the offices of Pres¬ 
ident and Vice President ascertained and declared 
agreeable to the Constitution.” Now, to ascer¬ 
tain and declare is to transform or pass into law. Can 
the President of the Senate pass anything into law 
by himself alone? Can he, in the language of the 
statute, ascertain and declare? Or is it the law-mak¬ 
ing power, the national legislature, the Congress of 
the United States, that ascertains and declares? 

It will be observed also that the mandate ef this law 
is to Congress to be in session on the second Wednes¬ 
day in February, not to the Senators and Represent¬ 
atives to be present as spectators or impotent wit¬ 
nesses whilst the President of the Senate is in ses¬ 
sion. Observe the expression “and the certificates 
* * * shall ^74 be opened.” When? According 

to the only possible construction of the language of 
the law, when Congress is in session on the second 
Wednesday of February. Mark in this connection 


15 


the constitutional definition of Congress: it “shall 
consist of a Senate and House of Representatives.” 

When, therefore, the Constitution declares that 
the certificates shall be opened “in the presence of 
the Senate and House of Representatives,” it means 
according to the interpretation of this early law, in 
presence of Congress as an organic, law-making 
body; for how could Congress otherwise be in “ses¬ 
sion”? The fact that both branches of Congress 
are in the same room on that occasion does not im¬ 
ply that the Senate and House of Representatives 
are not in session as separate and distinct bodies. 
The House of Representatives is not the place, or 
hall, where it meets. Neither is the Senate a cham¬ 
ber in the capitol building set apart for its delibera¬ 
tions. But for mutual inconvenience, both bodies 
might transact all their business within the same 
room as well as in the same building. 

Since the establishment of our constitutional gov¬ 
ernment the electoral certificates have been opened, 
“in presence of the Senate and House of Represent¬ 
atives,” and the votes counted, on twenty-two differ¬ 
ent occasions. The certificates have always been 
opened by the President of the Senate, “agreeable to 
the constitution.” In no single instance have the 
votes been counted by that officer alone. If the “su¬ 
preme law of the land” makes it the exclusive func¬ 
tion of the President of the Senate to count the 
votes, as certain desperate partisans now contend, 
then have the representatives of the people, from 
W89 to 1873, been either reckless of their sworn 


16 


duty, or they have been ignorant of a fundamental 
principle of the government. In every instance the 
votes have been counted by tellers appointed by the 
Senate and the House of Representatives. The in¬ 
variable practice has been for Congress to assume 
the duty of counting the electoral votes, through tel¬ 
lers designated by itsolf from its own members. 

The first “Congressional count” was little more 
than a formality. All the electoral votes had been 
cast with the preliminary view of making George 
Washington President. As yet there was no Vice 
President. As soon as a quorum had assembled, the 
Senate elected John Langdon Secretary pro tempore 
and informed the House of Representatives that “a 
President is elected for the sole purpose of opening 
the certificates and counting the votes of the electors 
of the several States in the choice of a President 
and Yice President of the United States.” In the 
same formal communication, that branch of Congress 
made knowm to the House that “the Senate have 
appointed one of their members to sit at the Clerk’s 
table to make a list of the votes as they shall be de¬ 
clared, submitting it to the wisdom of the House to 
appoint one or more of their members for the like pur¬ 
pose.” The very structure of the language of that 
communication shows that it was carelessly written. 
It is, therefore, not worth while to undertake to 
construe too literally the phrase, “for the sole purpose 
of opening the certificates and counting the votes.” 

Yet, even when literally construed, it does not de¬ 
clare that the votes shall be counted by the newly 


17 


elected President pro tempore of the Senate. With¬ 
out the concurrence of such an officer and the two 
branches of Congress the certificates could not be 
opened; still less could t*he votes be counted. A 
presiding officer of the Senate was, therefore, elected, 
for the sole purpose of completing the election of a 
President and Vice President of the United States 
according to the constitutional form. The record 
shows that the votes were counted by tellers—one 
Senator and two members of the House—appointed 
by Congress as its representative officers solely for 
its own convenience. So, at the first election of 
President, when the votes were unanimous for 
Washington, when no special attention was called to 
the relative duties of the presiding officer of the Sen¬ 
ate and the legislative branch of the Government, 
Congress asserted its right to supervise the opening 
of the certificates and determine the count of the 
electoral votes. 

The joint resolution of 1793, determining the 
mode of examining the votes for President and Vice 
President, inasmuch as it was followed in substance 

i 

or in form, on ten subsequent occasions, to-wit : In 
1797, 1809, 1813, 1817, 1825,1841,1845, 1849, 1853 
and 1857, is of essential importance, and may be re¬ 
garded as expressing the views of those who lived 
and thought and acted, nearest to the foundation of 
our Constitutional form of Government. On the 
11th of February, 1793, Mr. William Smith, from 
the committee appointed on the part of the House 


3 


18 


jointly with a committee appointed on the part of 
the Senate, reported as follows : 

“ That the two Houses shall assemble in the Sen¬ 
ate Chamber on Wednesday next, at 12 o’clock ; 
that two persons be appointed tellers on the part of 
this House, to make a list of the votes as they shall 
be declared; that the result shall be delivered to the 
President of the Senate, who shall announce the 
state of the vote, and the persons elected to both 
Houses, assembled as aforesaid, which shall be 
deemed a declaration of the persons elected Presi¬ 
dent and Vice President, and, together with a list of 
the voteSj be entered on the journals of the two 
Houses.” 

It was twice read in the House and adopted. The 
House ordered that Mr. Smith and Mr. Lawrance 
be appointed tellers. The report was adopted by the 
Senate, which also ordered the appointment of a tel¬ 
ler. (Benton’s Debates , Yol. 1, p. 417.) 

Mark the language of the joint resolution. Tellers 
shall be appointed on the part of the House and the 
Senate, “ to make a list of the votes as they shall 
be declared.^” “The result shall be delivered to the 
President of the Senate, who shall announce the 
state of the vote, and the persons elected, to both 
Houses, assembled as aforesaid.” Congress through 
its tellers shall determine the state of the vote , and 
also through its tellers shall deliver the result to the 
President of the Senate. 

The year previous, Congress had matured a law on 
the subject, and the whole matter was'fresh in the 


19 


minds of the members. No declaration could be 
more explicit or authoritative, that the counting of 
the electoral votes belongs to Congress, the best 
representative of the people’s sovereignty, and not 
to the President of the Senate, a purely ministerial 
officer designated by the Constitution to open the 
certificates and deliver the electoral votes to the 
National Legislature. 

Equally -explicit was the language of the joint 
resolution in 1801. Tellers were provided for, “ to 
make a list of the votes.” The resolution further 
says “ that the result shall be delivered to the Presi¬ 
dent of the Senate, who shall announce the state of 
the vote.” The counting of the votes showed that 
there was no choice of President by the electors, 
whereupon the House repaired to its own Chamber 
and elected Thomas Jefferson. 

A similar joint resolution was adopted for govern¬ 
ing the next Congressional count in 1805. An ut¬ 
terance of the President of the Senate on that occa¬ 
sion has a decided hearing on the argument. That 
officer broke the seals of the certificates and handed 
them successively to the tellers appointed by the 
Senate and the House of Representatives, saying at 
the commencement: “ You will now proceed, gen¬ 

tlemen, to count the votes as the Constitution and 
the laws direct.” 

Mr. Clay of Kentucky, from the joint committee, 
offered two resolutions in the House, February 4, 
1821. The first resolution provided for the appoint¬ 
ment of tellers and declared “ that the result shall 


i>0 


be delivered to the President of the Senate.” It re¬ 
asserted the authority of Congress to count the elec¬ 
toral votes, and was adopted hy acclamation. The 
second resolution, the design of which was to evade 
by compromise the counting of the electoral votes of 
Missouri, elicited an important debate, to which I 
shall recur under another division of the subject. It 
may here be noticed that during the whole debate 
no member called in question the authority of Con¬ 
gress to count the votes, as sent up by the electors 
of different states. The sole point in dispute was, 
whether Congress had the power to go back of the 
certificates. John Kandolph expressed it clearly in 
his trenchant declaration that “ he could not recog¬ 
nize in this House or the other House, singly or con¬ 
jointly, the power to decide on the votes of any 
State.” He agreed with Mr. Clay, that Congress, 
not the President of the Senate, had the power to 
count the electoral votes, as returned. 

In 1829, the Vice President broke the seals of the 
certificates and handed the packages to the Congres¬ 
sional tellers to count the votes. 

Again in 1833, the same usage was followed. The 
seals were broken in presence of the two Houses ; 
the tellers read and enumerated the votes. 

The usage was not varied in 1837. It is re¬ 
markable that the President of the Senate, on that 
occasion, distinctly announced the duty of Congress 
to count the votes. At the opening of the august 
ceremony, he arose and said: 

“The two Houses now being convened for the pur- 


21 


pose of counting the electoral votes for President 
and Vice President of the United States, the Presi¬ 
dent of the Senate will, in pursuance of the provisions 
of the Constitution, proceed to open the votes and 
deliver them to the tellers in order that they may be 
counted.” 

I have thus demonstrated that the practice was, 
from the adoption of the Constitution down to the 
time of the Rebellion, for the President of the Sen¬ 
ate to open the votes and for tellers appointed by the 
two Houses of Congress to count the votes. The 
practice since 1861 has been for Congress not only 
to count the electoral votes but also to assume con¬ 
trol over them as a final canvassing board. 

In view of a fair construction of the Constitution 
and the laws of the United States, and in view of the 
invariable usage of Congress, the following points 
may be regarded as established: 

1. That the President of the Senate cannot even 
open the certificates without the concurrence of the 
Senate and the House of Representatives by their 
presence in an organic capacity, as together consti¬ 
tuting the Congress of the United States; 

2. That the President of the Senate has no au¬ 
thority to count the votes; 

3. That Congress has authority to count the 
votes; 

4. That Congress cannot count the votes with¬ 
out the concurrence of the President of the Senate, 
who must be present as the Constitutional temporary 
custodian of the certificates, and open them; 


22 


5. That the tellers, to use the language of Sena¬ 
tor Boutwell, uttered in the Senate March 13th, 1876, 
“were the organs, the instruments, the hands of the 
respective Houses; the votes were counted by the 
tellers, and, being counted by the tellers, they were 
counted by the two Houses.” 

II. The graver question arises, in the second 
place, whether the two Houses of Congress, in count¬ 
ing the electoral votes, are confined to the simple 
duty of solving a problem involving arithmetical ad¬ 
dition and subtraction, or have the power, judicial in 
substance and legislative in the form of exercising 
it,- to determine the validity of the votes which they 
count. Henry Clay said, in 1821, on the second elec¬ 
tion of Monroe: “The two Houses are called on to 
enumerate the votes for President and Vice President. 
Of course they are called on to decide what are 
votes.” The question is, was Mr. Clay, in claiming 
that Congress “is called on to decide what are votes,” 
right or wrong ? 

1. The argument from the Constitution in sup¬ 
port of the doctrine that Congress has more than 
ministerial power in counting the electoral votes may 
he stated hypothetically. If, for example, it should 
appear from the returns that some man had received 
the greatest number of votes in the Electoral Col¬ 
leges, who was not thirty-five years of age, as required 
by the Constitution, would Congress be expected to 
count him in and declare him to be President of the 
United States? In other words, would Congress by 


23 


the Constitution be required to sanction and complete 
an unconstitutional act? The very statement of the 
hypothesis reaches the climax of absurdity. Unless 
Congress has the power to investigate and determine 
whether the electors have voted, knowingly or igno¬ 
rantly, for a man under the Constitutional age, and 
to reject such unconstitutional votes, then, indeed, 
are the Representatives of the people powerless to 
save from violation the fundamental law which they 
are sworn to preserve. 

Again, suppose the fact should be disclosed after 
a majority of the electoral votes have been cast that 
the man elected President of the United States, ac¬ 
cording to the returns, according to the certifi¬ 
cates already made out and sent in due form to the 
President of the Senate, was born in a foreign land. 
If the duty of Congress in counting the votes is 
purely ministerial, if in other words, the National 
Legislature has no power to go back of the certificates 
and investigate the Constitutional validity of the 
votes, then would our law-makers be compelled by 
the Constitution to declare the election of an uncon¬ 
stitutional Chief Magistrate of the Republic. 

It is not necessary to pursue the argument further. 
Henry Clay was right. When the two Houses are 
called on to enumerate the votes for President and 
Vice President, they are also called on to “decide 
what are votes.” 

The correlative proposition is also true. If the 
President of the Senate is required by the Constitu- 


24 


tion to count the votes, then is he required to decide 
what are votes. 

An observation may here be made with reference 
to the absurd claim that the President of the Senate 
has the Constitutional right to count the votes at 
all. The right to count carries with it the right to 
investigate and decide. Can the President of the 
Senate order an investigating committee, with power 
to send for persons and papers? Can he subpoena 
witnesses? Can he arraign recalcitrant witnesses at 
the bar of his imperial presence and send them to 
jail for contempt of his mandate ? Where in the 
Constitution is any such power granted to this offi¬ 
cer of the Senate? What clause in the Supreme 
Law of the land confers such a prerogative of sov¬ 
ereignty on one man? 

2. In the second place, we find that usage is on 
the side of reason in this important matter. From 
1793 to 1865 concurrent resolutions raised joint 
committees of the two Houses, to devise and report 
a mode of counting the electoral votes. Every four 
years during that long period, these concurrent res¬ 
olutions invariably charged the joint committees, 
among other things, to “ ascertain and report a 
mode of examining the votes for President and Vice 
President of the United States.” The identical lan¬ 
guage recurred, without variation of syllable or let¬ 
ter. In 1865, a standing rule, called the 22d joint 
rule, was reported by the joint committee. That 
rule governed the counts in 1865, 1869 and 1873. 
Previous to 1865, the mode was reported for that 


25 


count only. It need not be said that the language 
of the joint rule is stronger than the language of the 
joint resolution of any previous presidential year. 

Congress has at various times exercised its au¬ 
thority over the subject by questioning the validity 
of the electoral votes. The two Houses in joint ses¬ 
sion have, at different periods, questioned the elec¬ 
toral votes of twenty-one States. Four times the 
objections have been over-ruled. Three times the 
votes have been counted in the alternative. Thir¬ 
teen times votes have been excluded. Once the ob¬ 
jections were not passed upon. In no instance has 
the President of the Senate presumed to raise an ob¬ 
jection. Still less has that officer presumed to pass 
upon an objection. Mr. Mason, the President of the 
Senate, when the electoral vote of Wisconsin was 
objected to in 1857, emphatically said that he dis¬ 
claimed “ having assumed on himself any authority 
to determine whether that vote or any other vote 
was a good or a bad vote.” 

3. The opinions of eminent statesmen, familiar 
with public affairs, experienced in the legislation of 
Congress, are not only replete with argument bear¬ 
ing on the question under consideration, but also 
carry with them a great weight of authority. In my 
judgment the whole matter was summed up, with the 
intuition of genius, in the language already quoted, 
of Henry Clay, uttered in the House, February 4, 
1821; “ The two Houses were called on to enumer¬ 
ate the votes for President and Vice President. Of 
course they were called on to decide what are votes,” 


4 


*26 


Even John Randolph, not always consistent, yet 
possessing a fine sense of political truth in the 
midst of immeasurable personal sarcasm, who was 
ever jealous of the rights of States, said on the 
same day, in the same place: “ For what purpose 
do they [the two Houses] assemble together, unless 
it be to determine on the legality of the votes? ” 
Senator James L. Orr, of South Carolina, said, Feb¬ 
ruary 11, 1857, “ This, in my judgment, confers upon 
them [the two Houses] the power to determine 
whether a vote be valid or invalid. ” Senator Charles 
E. Stuart, of Michigan, said on the same occasion: 
“ What votes he shall count it is entirely competent 
for Congress to declare.” Humphrey Marshall, of 
Kentucky, said, February 11, 1857: “ The count is 

performed by the Senate and House * * * * 

‘ the votes shall be counted ’—not by you [the Presi¬ 
dent of the Senate] but by us [the Senate and 
House of Representatives].” The next day, R. W. 
T. Hunter, of Virginia, said in the Senate, u the 
power of the two Houses to regulate is recognized.” 
On the same day, Senator John J, Crittenden intro¬ 
duced the following resolution: “ Resolved , That 
the electoral vote of the State of Wisconsin, in the 
late Presidential election, being given on a day dif¬ 
ferent from that prescribed by law, was therefore 
null, and ought not to have been admitted or in¬ 
cluded in the count of electoral votes given in the 
late Presidential election,” thereby proclaiming his 
opinion that Congress has power “to decide what 
are votes.” Senator John P. Hale, of New Hamp- 


‘27 


shire, put the pertinent question, February^, 1865: 
“ Suppose when the two Houses meet in convention 
to count the votes, it is palpable to them that the 
electoral votes of some States were given by mem¬ 
bers of Congress, has Congress no power to say that 
they shall not be counted? ” Senator Edmunds, of 
Vermont, said, February 25, 1875, “ We all agree 
that whatever pretends to be a vote, or looks like a 
vote, but is not a vote, should not he counted.” 
Senator Eaton, of Connecticut, said on the same 
day, “ I apprehend that if a return came here that I 
believed was a fraud, that I had no doubt the seal of 
the State was fraudulently placed upon, I would vote 
against the reception of that return.” 

Senator Logan, of Illinois, said on the same day, 
“Under the Constitution both Houses are required 
to count the votes. Now, if it requires both Houses 
to count the votes, it should require both Houses to 
determine the votes, because the Constitution con¬ 
templates that both Houses form a convention for 
the purpose of determining these questions.” Sen¬ 
ator Roscoe Conkling, of New York, went still fur¬ 
ther, February 7, 1873, “But I go further than to 
maintain the naked power of Congress to inquire. I 
insist that we can utilize the result of the inquiry, 
and employ the facts in our action upon counting or 
refusing to count electoral votes for President or 
Vice President.” Senator Reverdy Johnson, of 
Maryland, said February 2, 1865, “* * * I think 

very clearly we have the authority * * * to pass 


28 


a law * * * declaring what electoral votes 

shall be counted legally.” 

But it is not necessary to multiply expressions of 
opinion on this point. I might also quote Senators 
Sherman, Dawes, Morton, Boutwell, Christiancy and 
others on the affirmative side of the question. A 
republican Senate and House of Representatives 
passed the well-known joint rule, in 1865, giving Con¬ 
gress complete jurisdiction over the subject. The 
weightiest argument that has ever been made in favor 
of the proposition that the counting of the electoral 
vote belongs to the National Legislature and not to 
the President of the Senate, was delivered in a 
speech by Senator Thurman, of Ohio. Among other 
things he said February 25, 1875, “I think that the 
spirit of the Constitution requires that these votes 
shall be counted in some mode by Congress or the 
convention of both Houses; but what shall be the 
mode? It is a fundamental principle that, where any 
power is conferred upon the government, or any de¬ 
partment or officer thereof, and the mode of exercis¬ 
ing that power is not prescribed in the Constitution 
itself, it belongs to the law-making power to prescribe 
the mode. I said the other day that that was a fun¬ 
damental principle of the Government, but I need 
• not have gone to any general principles of government, 
because it is expressly declared in the Constitution, 
as we all know in the very familiar paragraph, the 
last of Section 8 of Article 1, in which, after 
enumerating the power of Congress, it is said: 

“The Congress shall have power to make all laws 


29 


which shall be necessary and proper for carrying into 
execution the foregoing powers, and all other powers 
vested by this Constitution in the Government of 
the United States, or in any department or officer 
thereof.” 

III. A final and important question now arises. 
Are the electoral votes complete till they have been 
passed upon by Congress? To give them effect in 
the election of a President or Vice President of the 
United States, do they not require affirmation by 
the Senate and the House of Representatives ? In 
other words does it require the concurrent affirma¬ 
tion of both Houses to admit any electoral vote, or 
does it simply require the concurrent negative of both 
Houses to reject a questioned vote? 

It must not be forgotten that every act of a legis¬ 
lature is affirmative. The Congressional count of 
the electoral votes from 1793 to 1873, was in each 
case an affirmative act. Up to 1865 the affirmation 
by Congress of the votes sent up from the Electoral 
Colleges was by the intervention of a special joint 
resolution for each quadrennial occasion. The joint 
rule, adopted in 1865, governed the proceedings of 
Congress in that year, also in 1869 and 1873. 

Certificates bearing the great seal of States are in 
the nature of prima facie evidence. Congress has 
always respected that evidence. As a rule Congress 
has affirmed the electoral votes presented in due form, 
simply by the application of a joint resolution or a 
joint rule. At different times it has questioned the 


ao 


electoral votes of twenty-one States, and the inva¬ 
riable practice has been in favor of the principle that 
it requires the concurrent affirmation of both Houses 
to admit a questioned vote. This principle was ex¬ 
pressed with admirable clearness and sound politi¬ 
cal sense, by Henry Clay, in 1821: “ One House 

would say the votes ought to be counted, and the 
other that they ought not; and then the votes would 
be lost altogether.” The joint rule of 1865 expressly 
declared that “no vote objected to shall be counted 
except by the concurrent vote of both Houses.” 
The proposed law of 1800 recognized the same 
principle as necessarily existing, in the absence of a 
statute to the contrary. 

The principle that it requires the consent of both 
Houses of Congress, given in some way, to trans¬ 
form the certificates of States into lawful and effect¬ 
ive votes, is stated with inexorable logic by Senator 
Thurman in a speech made February 25, 1875: 
“ Then something must be done for a case where 
there are two conflicting returns; and what can you 
do but to require the two Houses to consider each of 
these returns, and then determine which of them 
shall be received? They can make no decision to 
receive one unless both Houses concur. One House 
has no superiority over the other. If the two Houses 
differ, one being in favor of one return and the other 
in favor of the other, and one inflexible, of course 
there can be no decision; but when there are two or 
more returns from a State, of necessity there must 
be a concurrence of the two Houses in order to re- 


31 




ceive one of them. Just as an equally divided Court 
can make no decision, in the same way, where there 
are two returns, it has to decide between them 
which is the true return, who were the true electors 
of that State, as appears by the certificates that 
have been made.” In the same speech, the Senator 
said, “ when there is but one return from a State, 
sufficient respect ought to be paid to that return that 
it should not be rejected unless both Houses unite in 
the opinion that it should be rejected.” While thus 
expressing, with admirable sense of justice, what 
ought to be, the Senator clearly implied the poiver 
to do otherwise. 

In 1865, the joint resolution of the two Houses of 
Congress was sent to President Lincoln for his ap¬ 
proval. He returned it with the following singular 
and significant message: 

To the Honorable Senate and House of Representatives: 

The joint resolution declaring certain States not entitled to rep¬ 
resentation in the Electoral College has been signed by the Execu¬ 
tive in deference to the view of Congress implied in its passage and 
presentation to him. In his own view ; however, the two Houses of 
Congress, convened under the 12th article of the Constitution, have 
complete power to exclude frem the counting all electoral votes 
deemed by them to be illegal, and it is not competent for the execu 
tive to defeat or obstruct that power by a veto, as would, be the case 
if his action were at all essential in the matter. He disclaims all 
right of the executive to interfere in any way in the matter of can¬ 
vassing or counting the electoral votes, and he also disclaims that 
by signing said resolution he has expressed any opinion on the 
recitals of the preamble or any judgment of his own upon the sub¬ 
ject of the resolution. 

Executive Mansion, 

Eeb. 8 , 1865 . 


Abraham Lincoln. 


3‘2 


Mr. Lincoln was a good lawyer, a clear-headed 
thinker, an honest man, and by no means a slave to 
partisan feeling. He expressed the views of the 
leading Senators and the leading members of the 
House; in short, he reflected the opinion of a large 
majority in Congress. He supplemented the judg¬ 
ment of Henry Clay, pronounced more than half a 
century earlier, that, when either House says the 
votes ought not to be counted, “ the votes would be 
lost altogether.” 

I agree with Senator Thurman, the embodiment 
of legal consistency and personal candor, that the 
electoral vote of a State, when there is but one re¬ 
turn, ought not to be rejected without the concur¬ 
rence of both Houses, yet admit with him that the 
affirmative concurrence of both Houses, in some 
form, is necessary in order to make it legally valid at 
all. In the language of Senator Logan, February 
25, 1875, “ the two Houses of Congress are to count 
the votes for President and Vice President the same 
as the two Houses of Congress pass laws.” As Sen¬ 
ator S. B. Maxey of Texas, said, March 21, 1876, 
“ Why the necessity of requiring the Senate to ap¬ 
pear organized and ready for business, unless it has 
business •? Why require the House of Representa¬ 
tives to be present organized, unless for business? ” 

Objection has been made to the doctrine that the 
two Houses of Congress must concur in affirming 
the electoral votes of States, upon the ground that, 
in case of division of political sentiment between the 
two branches of the National Legislature, one 


33 


House might refuse to affirm the votes from all 
States opposed to it in politics, and the other House 
might retaliate in the same way. According to the 
hypothesis, the whole electoral vote might be capri¬ 
ciously rejected, and thus the will of the people 
might be over-ruled by their own representatives. 

The objection is not valid. It is based upon the 
assumption that Congress might be composed of 
perjured scoundrels. It is the duty of both Houses 
to affirm the proper electoral vote from any State. 
The Constitution requires this. And each member 
of Congress is sworn to obey the Constitution. If 
any Senator or member of the House were to vote 
against the affirmation of a regular and lawful elec¬ 
toral return on partisan grounds, he would be a per¬ 
jured villain. The people would place the mark of 
Cain upon him, and his punishment would soon be 
greater than he could bear. When the citizens of 
the United States shall elect an entire Congress of 
such criminals, then the sooner our form of Govern¬ 
ment comes to an end the better. Representative 
Government, free institutions, are meant only for a 
people who can maintain their public virtue, their 
conscience and their integrity. The man who seri¬ 
ously urges such an objection not only insults Con¬ 
gress but casts opprobrium on the whole vast con¬ 
stituency of this nation. 

Equally are the members of Congress sworn not to 
affirm an electoral vote, or what purports to be an 
electoral vote, that is conceived in political sin and 
born in partisan^ iniquity. Both Houses are 
5 


34 


bound by every consideration of public justice, by 
the spirit of obedience to constitutional law, not 
to allow the partisan villainy of a fortuitous re¬ 
turning board in a State which has temporarily 
lost its true sovereignty, to neutralize the honest 
r.eturns of virtuous sister States, and to thwart the 
will of the American people. 

Another objection, entitled to more respectful con¬ 
sideration, may be here incidentally noticed. John 
Langdon, the first President of the Senate, made 
out a certificate in 1789, in ‘which he declared 
that he “did in the presence of the Senate and House 
of Representatives open all the certificates and count 
all the votes of the electors for a President and Vice 
President,” etc. Similar certificates, signed and 
sealed, were made by the presiding officer of the 
Senate, containing the same language, in 1797,1801, 
1805, 1809, 1813, 1817 and 1825. In 1801 thePres- 
dent of the Senate also certified to what had 
taken place in the House of Representatives. This 
language has been dropped for half a century. 

It may be stated in reply, that it was quite natu¬ 
ral for subsequent Presidents of the Senate to fol¬ 
low the phraseology of John Langdon, who perhaps 
did cipher up the electoral vote in the first 
anomalous Congressional court. None of them pre¬ 
sumed to have passed upon the electoral votes. None 
of them used the word “count” in the sense of de¬ 
termining the validity of the certificates. Even 
that innocent phraseology has long since passed into 
desuetude. Should the presiding officer of the Sen- 


35 


ate, whose ministerial duty it is to open the certifi¬ 
cates, have continued to use the same language 
down to the present time, its assumption would have 
no more significance than the formal declaration of 
the three tailors of Tooley street, that they were the 
people of England. As Senator Morton, of Indiana, 
said, March 20th, 1876, “Which is the more reas¬ 
onable, which is the better, which is the safer of the 
two: to adopt that construction which gives this 
great power to one man, the President of the Sen¬ 
ate, who may be counting the votes for himself, as 
it has turned out six times in our history; or would 
it be safer to leave it to the determination of the two 
Houses of Congress representing the States and the 
people ? If we are open to adopt either one of these 
constructions, I say the latter is the safer; it is the 
more reasonable, it is in conformity with the spirit 
of our Government and of popular institutions. I, 
then, adopt the latter construction.” 

Still another objection seems to demand a passing 
notice. Some have maintained that Congress de¬ 
rives its power to count the electoral votes from a 
joint resolution, a joint rule, or some law passed by 
itself; that in the absence of such law, rule or reso¬ 
lution, it has no power to make the count at all. 
The very statement of the proposition is a sufficient 
answer. Just as though Congress could confer on 
itself a power which it does not otherwise possess? 
If Congress has the right to pass a joint resolution, 
adopt a joint rule, or enact a law, regulating the 
count, then it certainly has the right to make the 


36 


count. Senator Roscoe Conkling, of New York, 
stated with logical precision the nature of the power 
conferred on Congress, by the Constitution, to count 
the votes, February 25, 1875: “ * * * You need 

not necessarily have members of the two Houses to 
act as tellers. Two of the pages of the two Houses 
could foot up these figures and present them to the 
Houses. But does anybody suppose that when you 
use the word ‘count’ in the constitutional sense you 
can delegate to two pages the count of those votes? 
I take it not; but the mechanical, ministerial func¬ 
tion, the mere manual act of presenting a total of a 
column of figures and handing that to the presiding 
officer, you may delegate to anybody, to the Sergeant- 
at-Arms for aught I know. Congress may do what¬ 
ever is committed to it as a Congress. Either House, 
or both Houses, may do whatever is committed to it 
or to them; but Congress cannot delegate to any¬ 
body else legislative power, or any other power, which 
is reposed in Congress, and located there and nowhere 
else. So we may make a rule which shall commit to 
the presiding officers of the two Houses the duty of 
scribes and chirographers, to set down and count up 
and state these figures; but when you come to the 
last act, to the act accomplished of making the count 
in all senses which the Constitution imports, that is 
the act of the two Houses.” In the language of Sen¬ 
ator Morton, March 21, 1876, this a “a matter which 
is devolved upon the two Houses hy the Constitution.” 
The proposition, then, that Congress derives its 
power to count the electoral vote from itself and not 


37 


from the Constitution, is not only absurd in state¬ 
ment, hut contrary to usage from the foundation of 
our Government, and opposed to the most authorita¬ 
tive interpretation of the fundamental law. 

From the positions maintained in this discussion, the 
following conclusions inevitably result: 

1. Congress derives its power to count the elec¬ 
toral vote from the Constitution. 

2 . Congress cannot derive this power from itself, 
but by concurrent act of both Houses may deter¬ 
mine the mode of exercising it. 

3. Congress cannot evade the count in the ab¬ 
sence of any joint resolution, joint rule or law, deter¬ 
mining the mode. 

4. The whole electoral vote must receive the ap¬ 
proval of both Houses in some form. 

5. Any questioned electoral vote cannot be ad¬ 
mitted when either House refuses its assent. 

6 . Congress is bound by the oath of each of its 
members, by the spirit of the Constitution, by good 
faith to the States, by duty to the people, not to re¬ 
ject an electoral vote, except for just and adequate 
cause. 

7. Congress is equally bound not to admit a vote 
that is unlawful or fraudulent. 

8 . Congress cannot delegate to an other branch 
of the Government, nor to any person or persons, its 
power to count the electoral vote. 

9. When both Houses of Congress meet in joint 
session, the President of the Senate takes prece¬ 
dence of the Speaker of the House of Representa- 


38 


tives, not by right, but by courtesy only, and he has 
no authority whatsoever to decide when the two 
Houses disagree. 

In regard to this last point, Senator Morton de¬ 
nied in the most incisive manner the power of Con¬ 
gress, even by a legislative act, to make the Presi¬ 
dent of the Senate an umpire between the two 
Houses. “ I deny,” he said, March 21, 1876, “ the 
power to create an umpire to decide between the 
two Houses in a matter which is devolved upon the 
two Houses by the Constitution.” 

In view of the impending Presidential count, on 
the 14th of February, it is the imperative duty of 
Congress to investigate beforehand the charges that 
have been made against the validity of certain elec¬ 
toral votes. It has been charged that half a dozen 
or more electors, in different States, were not eligi¬ 
ble, according to unmistakable provisions of the 
Constitution. The people and the States rely upon 
their representatives to ascertain the facts concern¬ 
ing these charges, and to act intelligently and firmly 
according to their best judgment and in fulfillment 
to their sworn duty. In regard to the disputed votes 
of Louisiana and Florida, every member ol both 
Houses is bound in the most solemn manner to lay 
aside party feeling, to forget Presidential candidates, 
to follow justice and right, as nearly as he can ascer¬ 
tain them and understand them. 

It may be that the Constitutional method of elect¬ 
ing a President and Vice President of the United 
States is not free from faults and dangers. But, be- 


89 


fore blaming the authors of the Constitution, we 
should consider well the difficulties which they en¬ 
countered. One of the writers of the Federalist, 
after enumerating many of these difficulties, elo¬ 
quently says, (Dawson’s edition, p. 246), “ Would it 
be wonderful, if, under the pressure of all these dif¬ 
ficulties, the Convention should have been forced 
into some deviations from that artificial structure 
and regular symmetry, which an abstract view of 
the subject might lead an ingenious theorist to be¬ 
stow on a Constitution planned in his closet, or in 
his imagination ? The real wonder is, that so many 
difficulties should have been surmounted ; and sur¬ 
mounted, with an unanimity almost as unprece¬ 
dented, as it must have been unexpected. It is im¬ 
possible for any man of candor to reflect on this cir¬ 
cumstance, without partaking of the astonishment. 
It is impossible for the man of pious reflection, not to 
perceive in it a finger of that Almighty hand, which 
has been so frequently and signally extended to our 
relief in the critical stages of the Revolution.” 

The present Congress, in view of the great and 
difficult duty that is now devolved upon it, may re¬ 
ceive one important lesson from the patriotic men 
who composed the Convention which framed the or¬ 
ganic law of the nation. “The Convention,” again 
says the Federalist, (p. 247), “must have enjoyed, in 
a very singular degree, an exemption from the pesti¬ 
lential influence of party animosities—the diseases 
most incident to deliberative bodies, and most apt 
to contaminate their proceedings.” 







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